In this latest tribunal decision arising from the pandemic, a risk assessment was carried out by an external professional in mid-March 2020 in the LLC Ltd warehouse, which recommended social distancing, sanitising surfaces, and staggering start/finish/lunch/break times.
Most of the recommendations were already in operation before the assessment. On Sunday 29 March 2020, having left work at the normal time on the previous Friday, R emailed T, his line manager, stating that he had no alternative but to stay off work ‘until the lockdown has eased’. This was because he had a child with sickle cell disease who would be extremely poorly if he got the virus, as well as a seven-month-old baby who could potentially have underlying health problems about which he was not yet aware. R obtained a self-isolation note covering 28 March to 3 April 2020. R and LLC Ltd made no further effort to contact each other until 24 April 2020, when R sent T a text message saying that he had just been told that he had been ‘sacked for self-isolating’. In the same text R asked for an explanation in writing as to why his employment had ended and requested that his P45 be sent to him. LLC Ltd sent R a P45 on the same day. R brought a claim of automatic unfair dismissal
The court of appeal has upheld the decision that an employee who was dismissed after he refused to return to the workplace until the COVID-19 lockdown measures were eased was not automatically dismissed for leaving or refusing to return to the workplace in circumstances of danger under S.100(1)(d) of the Employment Rights Act 1996. The employment judge permissibly concluded on the facts that there were no circumstances of danger that the employee reasonably believed to be serious and imminent, at work or at large, that he could not otherwise reasonably avert.
Whilst only a first instance tribunal decision not binding on subsequent tribunals, it is a useful indication of how the employment judges will look at these cases.